NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO(s).    865   OF 2019    (Arising out of SLP(Crl.) No(s). 9595 of 2018)

UNION OF INDIA …..Appellant(s)

VERSUS

MUBARAK @ MUHAMMED MUBARAK …..Respondent(s)

J U D G M E N T

Rastogi, J.

Leave granted.

2. The instant appeal has been filed against the judgment

dated 12th  September, 2018 passed by the High Court of

Judicature at Madras granting bail in default to the

accused/respondent after setting aside order of the Special Court

(under National Investigation Agency Act, 2008), Chennai dated

22nd March, 2018

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holding that the remand of the accused/respondent by the

Special Court for a further period of 90 days was not in

compliance to the  mandate of Section 43D(2)(b) of Unlawful

Activities(Prevention)  Act,  1967(hereinafter  being  referred to  as

“UAP Act, 1967”).

3. The facts giving rise to this appeal insofar as they are

relevant for disposal  are that a case was initially  registered at

Police Station Thudialur in  Cr.  No. 735/2016 on the  written

complaint of one Dhanapal, brother of the deceased(Sasikumar)

who  was a spokesperson  of  Hindu  Front at  Coimbatore,  was

brutally hacked to death by a gang of unknown persons on 22nd

September, 2016 at about 2315 hrs.   Due to the above murder,

violence broke out in Coimbatore when the body of the deceased

was taken for cremation.   As the violence spread out to

neighbouring directions of Tirupur, viz., Nilgiris and Erode, about

237 cases came to be registered in respect of  the incidence of

stone pelting, hurling of petrol bomb on Mosque, setting fire to

shops, attack on police vehicles and buses, attack on shops

belonging to different sect of the society.  For days together, the

harmony, public peace and tranquillity got affected.  DGP, Tamil

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Nadu, considering the gravity of the offence transferred the case

to (Special Investigation Division)  CB CID,  Coimbatore on 27th

September, 2016.   During the course of investigation, an

alteration report was filed by SID CB CID to invoke Section 120B

and Section 153A IPC and Section 16 and 18 of UAP Act, 1967.

4. The Central Government in exercise of the powers conferred

under Section 6 read with Section 8 of the NIA Act entrusted the

investigation to the National Investigation Agency vide order

dated 22nd January, 2018.   The case was taken over by the NIA

as R.C. No. 03/2018/NIA/DLI under Section 302, 153A, 120B of

IPC read with Section 16 and 18 of the UAP Act, 1967 vide order

dated 29th  January, 2018.   During the course of  investigation,

four  accused persons were  arrested out  of  which  the  accused

respondent(A­4) was arrested on 25th December, 2017.   

5. A report under Section 43(D)(2) of the UAP Act, 1967 was

submitted  by the  Special  Public  Prosecutor  before the  Special

Court under NIA assigning specific reasons for seeking extension

of judicial detention of the accused respondent for a further

period of 90 days enabling him to complete the investigation.  A

counter statement was filed by the accused respondent on the

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same date opposing the application filed by the Special  Public

Prosecutor through his counsel.   The  Special  Court(NIA)  after

hearing the parties recorded its satisfaction for detention of the

accused respondent for a further period of 90 days and allowed

the petition filed by the Special Public Prosecutor under its order

dated 22nd  March, 2018 which was the subject matter of

challenge in appeal preferred at the instance of the accused

respondent under Section 21 of the NIA Act before the High Court

of  Madras, which on appraisal of the record, arrived at the

conclusion that the specific reasons which has been assigned by

the Special Public Prosecutor in his report seeking detention of

the respondent for a further period of 90 days does not meet the

requirement of law as contemplated under Section 43D(2)(b) of

the  UAP Act,  1967 and accordingly  set  aside  the order  of the

Special Court dated 22nd  March, 2018 and in consequence

thereof, granted statutory bail in default to the accused

respondent under its order dated 12th September, 2018 which is

a subject mater of challenge in appeal before us.

6. It may be relevant to note at this stage that the other three

accused persons, namely,   Syed Abuthair(A­1) arrested on 22nd

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March, 2017  was granted statutory bail on  19th  June, 2017;

Sadham Hussain(A­2) arrested on 1st August, 2017 was granted

statutory bail on 1st November, 2017 and Subair(A­3) arrested on

11th  October,  2017  was granted regular  bail on  12th  October,

2018 on merits.   It  has  been  informed  to this  Court that

later charge­sheet was filed against all the accused(A1 to A4) on

7th April, 2018/21st June, 2018 and it is pending for framing of

charge under Section 228 of Code of Criminal Procedure, 1973.

7. Learned counsel for the appellant submits that Paras

8,9,10, 12, 13, 14, 15  & 16 of the report of Special Public

Prosecutor indicate specific reasons like need for further  NIA

custody of the accused as envisaged in Section 43D(2) of the UAP

Act, 1967, to verify the  facts revealed through experts and for

unravelling the conspiracy in the case for the detention of the

accused respondent beyond the said period of 90 days and once

the  satisfaction was  recorded by the learned Judge of  Special

Court  meeting out the requirements envisaged  under Section

43D(2) of the UAP Act, 1967, the satisfaction so recorded after

perusal of the record could not have been overturned by the High

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Court unless very strong reasons are forthcoming, which has not

been pointed out under the impugned judgment.    

8. Per contra, while supporting the order of the High Court,

learned counsel for the respondent submits that though the

reasons have been assigned by the Special Public Prosecutor in

his report which may be relevant for further investigation, but are

not relevant to justify for further detention of the accused

respondent  beyond the  period of 90  days  and that  being the

mandate of law as envisaged in Section 43D(2)(b) of the UAP Act,

1967, no error was committed by the High Court in setting aside

the order of the Special Court under the impugned judgment.

9. Learned counsel for the respondent in alternate further

submits that the detention of the accused respondent might have

been necessary at the relevant point of time for further progress

of the investigation but the fact situation has later changed and

when the charge­sheet has been filed in the instant case against

all the four accused persons and accused no. 1 and accused no.

2 were granted bail in default and accused no. 3 was granted

regular bail on merits by the competent Court of jurisdiction and

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in either of the order of bail granted to the accused nos. 1 to 3,

prosecution has not filed any application for cancellation and the

present accused respondent is also on bail, may be in compliance

of the  judgment  impugned and when it is  not the case of  the

appellant that after statutory bail being granted to him in

compliance of the impugned judgment dated 12th  September,

2018, he has committed any breach or violated the conditions of

the bail granted to him.   At least, in the given facts and

circumstances, even if there may be some merit in the

submission made  by the  appellant,  at least the  statutory  bail

which was granted to  the accused respondent in  the changed

circumstances, may not be interfered with by this Court.

10. It is not disputed that in the instant case that the accused

respondent was arrested on 25th  December, 2017 and initial

period of 90 days was to expire on 24th March, 2018 and prior

thereto on 22nd  March, 2018, the report was submitted by the

Special Public Prosecutor assigning specific reasons for extension

of remand of the accused respondent for a further period of 90

days under Section 43D(2)(b) of UAP Act, 1967 and after a copy

of application was supplied to the accused respondent, he filed

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his written objections through counsel and after affording

opportunity  of  hearing to the  parties, the  Special  Court,  after

recording its satisfaction, in reference to the specific reasons

assigned for detention of the accused respondent for a further

period of  90  days  allowed  the  application  filed  by the  Special

Public Prosecutor vide its order dated 22nd March, 2018.

11. The extract of the report submitted by the Public Prosecutor

indicating the progress of the investigation and the specific

reasons required for detention of the accused respondent for a

further period of 90 days as envisaged under Section 43D of the

UAP Act are stated as under:­

8. It is further  submitted  that,  during the  course  of investigation more than 350 witnesses have been examined, more than 250 suspects were interrogated, more than 2500 Call Data Records were obtained, 25 Tower Dump data were collected, and more than 50 CCTV footages from the path travelled by the deceased were collected.   The collected data and CCTV footages are huge volumes and the analyzing of all the above is under active process for the purpose of investigation.

9. It is further submitted that in pursuance of warrant issued by this  Hon’ble Court  vide dated 16.03.2018, search for evidence at the residences of accused who were involved in this case has been conducted on 18.03.2018.   During the search conducted by  NIA, huge amount of incriminating articles such as mobile phones, DVDs/CDs, Memory Cards/SD cards and documents  etc.  have  been  seized  for the  purpose  of investigation and the same was produced before this Hon’ble Court for safe custody without delay.

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10.It is further submitted that the seized incriminating electronic gadgets such as mobile phones, DVDs/CDs, Memory Cards/SD cards  and Hard Discs  containing CCTV footages has been forwarded to the  Director, CDAC, Thiruvananthapuram for examination/ analysis through this Hon’ble Court on the request of CIO and the same needs to be analysed by the experts of  C­ DAC,  Thiruvananthapuram.  The report is  yet to  be received.  The accused persons may be required  for further police custody from judicial custody for the purpose of investigation as envisaged in Section 43 D (2)  (b) of UA(P) Act 1967 to verify any facts obtained from the forensic experts.

11. xxxx

12.It is further submitted that the NIA is conducting investigation on the social media and email communication  used  by the  accused  and  associates and the process of sending requests to the  United States of America (USA) under Mutual Legal Assistance Treaty (MLAT) between Republic of India and USA to get the details of social media accounts and communications between accused and their associates in India and abroad is under progress.

13.It is further submitted that, the confessions/interrogation of accused Syed Abu Thahir (A­1), Sadham @ Sadham Hussain (A­2), Subair (A­3) and Mubarak (A­4)  reveals that after  committing the occurrence, they  have  moved to Karnataka, Andhra Pradesh and Telangana and have concealed themselves from the  clutches  of law.   It is  suspected  that they would have got assistance and shelter from some organization which should be brought out further. Further one more vehicle involved in this crime is yet to be recovered.

14.The witnesses in this case are at high risk of being eliminated since they have come forward to speak the truth.   The agency wishes to secure an order of protection under Section 17 of the NIA Act, 2008 for which an application will  be filed in the near future. The NIA also wishes to complete the investigation without any wastage of time.  However, the completion of investigation requires at least three months owing to the large amount of evidence to be collected and also

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the spread of evidence between 5 states namely Kerala, Tamil Nadu, Andhra Pradesh, Karnataka and Telangana.

15.It is further submitted that, the NIA as an investigating force, is required to take steps to unravel the larger conspiracy including the clandestine terror activities of the accused, their association with other organizations, their possible locations in India and abroad and the sources of funding etc.   Besides, requisitions were sent to the concerned service providers to  get the  CDR’s  of  all the  mobile  phones recovered and the other numbers used by the accused with a view to analyze the same for establishing the linkages between the accused/suspects and field verification  needs to  be  done.   It is  not  possible to complete the investigation  within the said period of ninety days.

16.It is further submitted that the investigation is proceeding in the right direction.   Since the accused are hard­core ideologists, detailed further interrogation is inevitable to collect more evidence and for unravelling the larger conspiracy behind the crime. There may be imminent threat to the security of the nation if the  accused  are  not interrogated in  detail, more evidence is not collected and detailed investigation is not done to identify and secure other members of the group.

12. Before  we proceed  to  examine  the  question raised  in  the

instant appeal any further, it  may be apposite to take note of

Section 43D(2)(b) of the UAP Act, 1967:­

“43D.Modified application of certain provisions of the Code.

(1)­ ­ ­ xxx

(2)Section 167 of the Code shall apply in relation to a case involving  an offence  punishable  under this  Act subject to the modification that in sub­section (2),­

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(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely: ­

        Provided further that  if it is not possible to complete the investigation  within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation  and  the  specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

   Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.”

13. The necessary ingredients of the proviso to Section 43D(2)(b)

of the UAP Act, 1967 has to be fulfilled for its proper application.

These are as under:­

A. It has not been possible to complete the investigation within the period of 90 days.

B. A report to be submitted by the Public Prosecutor.

C. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.

D. Satisfaction of the Court in respect of the report of the Public Prosecutor.

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14. The scope of Section 43D(2)(b) of UAP Act, 1967 has been

examined recently by a three Judge Bench of this Court in State

of Maharashtra Vs.  Surendra Pundlik Gadling & Ors.  2019

SCC Online SC 188 and has not detained us any further.

15. Taking note of the specific reasons which has been assigned

by the Special Public Prosecutor in his report of which reference

has been made(supra), we are satisfied that the specific reasons

assigned by the Public Prosecutor fulfil the mandate and

requirement of Section 43D(2)(b) of the UAP Act, 1967 and that

was considered by the Special Court in detail who after recording

its satisfaction, granted detention of the accused respondent for a

further period of 90  days  under its  Order  dated  22nd  March,

2018.   

16. We cannot be oblivious of the changed circumstances which

has been brought to our notice regarding the FIR (Cr. No.

735/2016) registered at Thudialur Police Station, Coimbatore for

the  incident of  22nd  September,  2016.   Charge­sheet has been

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filed against all the four accused persons(A­1 to A­4) including

the accused respondent on 7th April, 2018/21st  June, 2018 and

all the accused nos. 1, 2 and 3 are on bail from 19th June, 2017,

1st November, 2017 and 12th October, 2018 respectively and the

matter is pending for framing of charge and it is not the case of

the  appellant that the present accused respondent  after  being

enlarged on bail in compliance of the impugned judgment dated

12th September, 2018 has committed any breach or violated the

conditions of grant of bail.   

17. To conclude, we are not in agreement with the conclusions

arrived at by the High Court in the impugned judgment dated

12th September, 2018 but taking note of the later developments

and the supporting facts brought to our notice, we are not

inclined to interfere with the final relief to the extent of granting

default bail to the accused respondent in the circumstances of

the case on hand.  However, it may be open for the prosecution to

apply for cancellation of bail, if any exigency arises in future.  We

consider it further to direct the learned Presiding Officer of the

Special Court, NIA, to expedite and conclude the trial on or before

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March, 2020.   Compliance report be sent to the Registry of this

Court.

18. Consequently, the appeal is disposed of in the above terms.

 …………………………J. (A.M. KHANWILKAR)

…………………………J. (AJAY RASTOGI)

NEW DELHI May 07, 2019

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